Lawmakers Limit Right to Sue for Adultery

By Tami Fitzgerald
Christian Action League

Under a bill that passed the General Assembly this week, married persons who have separated from their spouses will no longer be able to sue third parties for interfering in their marriage during the separation period, even though they are still married. House Bill 1110-Clarify Alienation of Affection/Criminal Conversation-shortens the window within which interference in the marriage by a third party can give rise to a lawsuit.

These actions, known as “criminal conversation” and “alienation of affection,” give the wronged spouse the right to hold a third party liable for committing adultery with his/her spouse (criminal conversation) and for alienating the affections and spousal love of his/her spouse (alienation of affection). They are the only real remedies against a third party who breaks up a marriage, as the criminal statutes for adultery are rarely enforced by prosecutors these days. North Carolina is one of only a few states that still offer a married person the right to sue a third party for interfering in his or her marriage.

As reported last week, the North Carolina Bar Association has tried for the past several sessions to abolish these laws, stating that they are outdated, are used to extract vengeance, and are a means to gain an advantage in the divorce settlement. Their attempts have failed, so this year, they took the incremental approach of whittling away some of the effectiveness of these lawsuits. They recruited Representative Melanie Wade Goodwin (D-Montgomery) to file a bill limiting the timeframe within which these tort actions can give rise to a lawsuit.

Under North Carolina divorce law, spouses must be separated for one year before they can obtain a legal divorce. Currently, a married person can file suit for “criminal conversation” and “alienation of affection” that occurs up until the time of divorce. That means that adulterous activities and alienation of affections that occur between the married person’s spouse and a third party can be the subject of a lawsuit for damages against the interfering third party up until the time of divorce, even if the actions occur when the married couple is legally separated.

House Bill (HB) 1110—Clarify Alienation of Affections/Criminal Conversation—limits acts giving rise to a cause of action for alienation of affection or criminal conversation to those acts occurring before the legal separation of the couple, which is defined to mean “the date at which spouses cease living together with the intent to remain separate and apart.” HB 1110 changes current law so that no longer will aggrieved spouses be able to file suit for adultery or alienation of affections by a third party that occurs after the date the couple separates but before they are legally divorced. Other changes made by HB 1110 are setting a 3-year statute of limitations and prohibiting the filing of such actions against corporations.

The House passed HB 1110 on May 14th, and it was considered by the Senate this week. On Tuesday, July 7th, the Senate Judiciary-I Committee heard arguments on the bill. Senator Jerry Tillman offered an amendment that would have extended the time within which adulterous or interfering actions could give rise to a lawsuit to 120 days after the date of legal separation. Senator Phil Berger (D-Rockingham) offered an amendment that would have kept the existing law in place for adultery lawsuits, allowing them to be filed up until the time of divorce. These amendments would have allowed the separated couple time to talk, to seek counsel, and to attempt to reconcile by deterring the interference of third parties in the marriage for a period of time after separation.

The Christian League argued during the Judiciary-I Committee that: “Immediately after a couple separates is when they need the most help if they have a chance of putting their marriage back together. If the State truly values marriage as the foundation of society in North Carolina, it should create laws that help to promote marriage, not to tear it down. Cutting off the ability of an aggrieved spouse to file an action for alienation of affection or criminal conversation at the point of legal separation provides the opportunity to walk away without a genuine effort to put the marriage back together. It does not create a legal framework within which the married couple is encouraged to work out their differences, but one in which they are encouraged to go their separate ways and begin involvements in other relationships.”

The Tillman Amendment and the Berger amendment both failed in the Judiciary-I Committee. The Judiciary-I committee then gave the bill a favorable report and sent it to the Senate floor.

On Wednesday, July 8th, the Senate considered the bill. Senator Jerry Tillman (R-Montgomery) again attempted to amend the bill so the aggrieved spouse could file suit for any act giving rise to a cause of action for alienation of affection or criminal conversation that occurs within 120 days after separation of the couple. The amendment drew a tie vote of 23 to 23, as a result of four Democrats voting with all 19 Republicans who were present. Lieutenant Governor Walter Dalton cast the deciding vote against the amendment. Click here to see how your Senator voted on this Amendment, which would have promoted marital reconciliation.

Once the Tillman Amendment failed, the bill then easily passed by a vote of 32 to 14. Click here to see how your Senator voted on the bill. The bill has been sent to the Governor for her signature. Governor Purdue is expected to sign the bill.

While the change whittles down the timeframe within which adulterous actions of a spouse and a third party or the alienation of marital love by a third party give rise to a lawsuit, at least the right to file a lawsuit for such violations is still preserved. The results of the close vote on the Tillman amendment should send a clear message to the Bar Association that any future attempts to abolish these tort actions will not receive enough votes to pass.